Pledge case very confusing in family law

June 15, 2004

It is not unusual for the U.S. Supreme Court to refrain from ruling on a core constitutional question in cases that it hears. In the Pledge of Allegiance case, however, the court may have bought more trouble for family courts around the country than the evasion was worth.

The case began when Michael Newdow, an atheist in Elk Grove, Calif., near Sacramento, filed suit to ban the pledge, or at least “under God,” from his daughter’s school.

But it turns out that Newdow is in a protracted custody dispute with the child’s mother, who is a born-again Christian who likes the “under God” phrase. So the high court ruled that Mr. Newdow didn’t have enough effective custody to have standing to file the suit on behalf of the child, so the suit was dismissed.

That spared the court the obligation of making what would have been a controversial decision either way. But Marci Hamilton, who is familiar with the issues and teaches law at Yeshiva University in New York, said that by reaching a definitive decision about a strictly state-level family law case, the court “could sow confusion in family law cases in all 50 states. The court has muddied the waters on issues of custody unnecessarily.”

Hamilton is sure the issue will be back, brought by couples who are still married and atheists, in different circuits so there will be conflicting opinions and the Supreme Court will sooner or later have to resolve the issue.

Is this issue important in more than a symbolic way? Probably not. The most objectionable thing about the pledge is that students daily “pledge allegiance” to the government, whereas in a genuinely free society it would be the government that would be required to pledge daily allegiance to the rights and freedoms of citizens.

Chief Justice William Rehnquist, Justice Sandra Day O’Connor and Justice Clarence Thomas each wrote opinions saying they would vote to keep “under God” in the pledge. So there will be three votes for the current language when the case reaches the high court again. It’s hard to predict more — except that when the issue returns to the Supreme Court, it will be after a more organized and divisive campaign on both sides, making the eventual decision even more emotional than if the high court had simply bitten the bullet and made a decision this year.